Table of Authorities

Questions Presented

Constitutional Provisions, Statutes, Ordinances, Rules or Regulations at Issue

Statement of the Facts

Summary of Argument

Argument

I. RSA 33:8, As Amended, Violates Article I, Part 39 Of The New Hampshire Constitution By Changing The Form Of Government In Official Ballot Communities Without A Referendum

II. RSA 33:8, As Amended, Violates The Equal Protection Clauses Of The United States And New Hampshire Constitutions By Improperly Affecting The Free Speech And Voting Rights Of Citizens In Official Ballot Communities

Conclusion

Certificate of Service

Request for Oral Argument

Constitutional Provisions and Statutes

U.S. Const., XIV, § 1

N.H. Const., Part I, Art. 1

N.H. Const., Part I, Art. 2

N.H. Const., Part I, Art. 39

RSA 33:8

RSA 40:13

RSA 40:14

Cases

Belkner v. Preston, 115 N.H. 15, 18 (1975)

Claremont School Dist. v. Governor, 142 N.H. 462 (1997)

Girard v. Town of Allenstown, 121 N.H. 268, 272 (1981)

Opinion of the Justices, 109 N.H. 396, 400 (1969)

Opinion of the Justices, 112 N.H. 42 (1972)

Opinion of the Justices, 134 N.H. 711 (1991)

Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing, Inc., 123 N.H. 103 (1983)

Seabrook Police Ass'n. v. Town of Seabrook, 138 N.H. 177, 182 (1993)

Sedgewick v. City of Dover, 122 N.H. 193 (1982)

State v. Griffin, 86 N.H. 609, 615 (1894)

I. Whether the Legislature's 1999 amendment of RSA 33:8, decreasing the voting percentage required for the approval of bond issues in Official Ballot municipalities and school districts, violated Part I, Article 39 of the New Hampshire Constitution by changing the form of government in those entities without a local referendum?

II. Whether the Legislature's 1999 amendment of RSA 33:8, establishing separate treatment under the law for citizens who vote on bond issues based on their level of political participation and political views, violates the equal protection provisions of the United States and New Hampshire Constitutions by impinging upon the fundamental rights of voting and freedom of speech for citizens who live in Official Ballot communities?

U. S. Const., XIV, § 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

N. H. Const., Part I, Art. 1

All men are born equally free and independent: Therefore, all government, of right, originates from the people, is founded in consent, and instituted for the general good.

N. H. Const., Part I, Art. 2

All men have certain natural, essential, and inherent rights--among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.

RSA 40:13. Use of Official Ballot

I. Notwithstanding RSA 39:3-d, RSA 40:4-e, or any other provision of law, any local political subdivision as defined in RSA 40:12 which has adopted this subdivision shall utilize the official ballot for voting on all issues before the voters.

II. The warrant for any annual meeting shall prescribe the place, day and hour for each of 2 separate sessions of the meeting, and notice shall be given in accordance with paragraph II-a.

II-a. Notwithstanding any other provision of law, all local political subdivisions which adopt this subdivision shall comply with the following schedule pertaining to notice, petitioned articles, hearings, and warrants for the annual meeting:

1. The final date for posting notice of budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a shall be the first Tuesday in January.

2. The "budget submission date" as defined in RSA 273-A:1, III and the final date for submission of petitioned articles under RSA 39:3 and RSA 197:6 shall be the second Tuesday in January.

3. Budget hearings under RSA 32:5 and RSA 195:12 and hearings under RSA 33:8-a and RSA 675:3 shall be held on or before the third Tuesday in January.

4. Warrants under RSA 39:5 and RSA 197:7 and budgets shall be posted and copies available to the general public on or before the last Monday in January.

III. The first session of the annual meeting, which shall be for the transaction of all business other than voting by official ballot shall be held between the first and second Saturdays following the last Monday in January, inclusive of those Saturdays, at a time prescribed by the local political subdivision's governing body.

IV. The first session of the meeting, governed by the provisions of RSA 40:4, 40:4-a, 40:4-b, 40:4-f, and 40:6-40:10, shall consist of explanation, discussion, and debate of each warrant article. A vote to restrict reconsideration shall be deemed to prohibit any further action on the restricted article until the second session, and RSA 40:10, II shall not apply. Warrant articles may be amended at the first session, subject to the following limitations:

1. Warrant articles whose wording is prescribed by law shall not be amended.

2. Warrant articles that are amended shall be placed on the official ballot for a final vote on the main motion, as amended.

V. Repealed by Laws 1997, Ch.318, § 12, eff. Aug. 22, 1997.

VI. All warrant articles shall be placed on the official ballot for a final vote, including warrant articles as amended by the first session. All special warrant articles shall be accompanied on the ballot by recommendations as required by RSA 32:5, V, concerning any appropriation or appropriation as amended.

VII. The second session of the annual meeting, to elect officers of the local political subdivision by official ballot, to vote on questions required by law to be inserted on said official ballot, and to vote on all warrant articles from the first session on official ballot, shall be held on the second Tuesday in March. Notwithstanding RSA 669:1, 670:1, or 671:2, the second session shall be deemed the annual election date for purposes of all applicable election statutes including, but not limited to: RSA 669:5, 669:19, 669:30, 670:3, 670:4, 670:11, 671:15, 671:19, and 671:30-32; and votes on zoning ordinances, historic district ordinances, and building codes under RSA 675.

VIII. The clerk of the local political subdivision shall prepare an official ballot, which may be separate from the official ballot used to elect officers, for all warrant articles. Wording shall be substantively the same as the main motion, as it was made or amended at the first session, with only such minor textual changes as may be required to cast the motion in the form of a question to the voters.

IX. "Operating budget" as used in this subdivision means "budget," as defined in RSA 32:3, III, exclusive of "special warrant articles," as defined in RSA 32:3, VI, and exclusive of other appropriations voted separately.

X. If no operating budget article is adopted, the local political subdivision either shall be deemed to have approved the same appropriations as contained in the operating budget authorized for the previous year, reduced and increased, as the case may be, by debt service, contracts, and other obligations previously incurred or mandated by law, or reduced by one-time expenditures contained in the operating budget, or the governing body may hold a special meeting pursuant to paragraph XVI to take up the issue of a revised operating budget only; provided that RSA 31:5 and RSA 197:3 shall not apply to such a special meeting. If no operating budget article is adopted the estimated revenues shall nevertheless be deemed to have been approved. For the purposes of this paragraph, one-time expenditures shall be appropriations not likely to recur in the succeeding budget, as determined by the governing body of the local political subdivision.

XI. The amount of the previous year's operating budget, as adjusted pursuant to paragraph X, shall be disclosed to the voters at the first session. This amount shall not be amended by the legislative body. However, this amount may be adjusted by the governing body, acting on relevant new information at any time before the ballots are printed. The wording of the second session ballot question concerning the operating budget shall be as follows:

"Shall the (local political subdivision) raise and appropriate as an operating budget, not including appropriations by special warrant articles and other appropriations voted separately, the amounts set forth on the budget posted with the warrant or as amended by vote of the first session, for the purposes set forth therein, totaling $..........? Should this article be defeated, the operating budget shall be $.........., which is the same as last year, with certain adjustments required by previous action of the (local political subdivision) or by law; or the governing body may hold one special meeting, in accordance with RSA 40:13, X and XVI, to take up the issue of a revised operating budget only."

XII. Voting at the second session shall conform to the procedures for the nonpartisan ballot system as set forth in RSA 669:19-29, RSA 670:5-7 and RSA 671:20-30, including all requirements pertaining to absentee voting, polling place, and polling hours.

XIII. Approval of all warrant articles shall be by simple majority except for questions which require a 2/3 vote by law, contract, or written agreement.

XIV. Votes taken at the second session shall be subject to recount under RSA 669:30-33 and RSA 40:4-c.

XV. Votes taken at the second session shall not be reconsidered.

XVI. The warrant for any special meeting shall prescribe the date, place and hour for both a first and second session. The second session shall be warned for a date not fewer than 28 days nor more than 60 days following the first session. The first and second sessions shall conform to the provisions of this subdivision pertaining to the first and second sessions of annual meetings. Special meetings shall be subject to RSA 31:5, 39:3, 195:13, 197:2, and 197:3, provided that no more than one special meeting may be held to raise and appropriate money for the same question or issue in any one calendar year or fiscal year, whichever applies, and further provided that any special meeting held pursuant to paragraphs X and XI shall not be subject to RSA 31:5 and RSA 197:3 and shall not be counted toward the number of special meetings which may be held in a given calendar or fiscal year.

RSA 40:14 Method of Adopting Official Ballot Referendum Form of Meeting

I. This subdivision may be adopted by any local political subdivision as defined in RSA 40:12. A 3/5 majority of those voting on the question shall be required to adopt this subdivision. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

II. Adoption of this subdivision shall be deemed to constitute a vote to conduct the election of town officers by official ballot under RSA 669:14.

III. The local political subdivision shall place the question on the warrant of the annual meeting under the procedures set out in RSA 39:3 or RSA 197:6, and the question shall be voted on by official ballot in accordance with the procedures established in RSA 669:19-29, RSA 670:5-7 and RSA 671:20-30, including all requirements pertaining to absentee voting, polling places, and polling hours.

IV. A public hearing shall be held by the local governing body on the question at least 15 days, but not more than 30 days, before the question is to be voted on. In multi-town districts, a public hearing shall be held in each town embraced by the district, none of which shall be held on the same day. Notice of the hearing shall be posted in a least 2 public places in the town and at least 2 public places in each town of multi-town districts, and published in a newspaper of general circulation at least 7 days prior to the date of the hearing.

V. The wording of the question shall be: "Shall we adopt the provisions of RSA 40:13 (known as SB 2) to allow official ballot voting on all issues before the (local political subdivision)?"

VI. If a 3/5 majority of those voting on the question vote "yes," RSA 40:13 shall apply within the local political subdivision at the annual or special meeting next following. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

VII. Any local political subdivision which has adopted RSA 40:13 may consider rescinding its action in the manner described in RSA 40:13, III-VI. The wording of the question shall be: "Shall we rescind the provisions of RSA 40:13 (known as SB 2), as adopted by the (local political subdivision) on (date of adoption), so that the official ballot will no longer be used for voting on all questions, but only for the election of officers and certain other questions for which the official ballot is required by state law?" A 3/5 majority of those voting on the question shall be required to rescind the provisions of this subdivision, except in the case of repeal by charter enactment under RSA 49-D. Only votes in the affirmative or negative shall be included in the calculation of the 3/5 majority.

VIII. For any town which has adopted a charter under RSA 49-D:3, the method of adoption shall be the manner of amending the charter as provided under RSA 49-B.

IX. In the event that an alternative method for the adoption of official ballot voting exists under the laws of this state, then once the requirements are met for inclusion of the question on the warrant for annual meeting of whether to adopt this subdivision, neither the governing body nor the legislative body shall commence action to adopt official ballot voting through such alternative method until a final vote is taken on the warrant article. If procedures have been initiated to adopt official ballot voting under an alternative law of this state, then neither the governing body nor the legislative body shall commence action to adopt this subdivision until such alternative procedures are exhausted.

The plaintiff Richard McGraw resides in Exeter, New Hampshire and is entitled to vote at the annual meeting of the defendant Exeter Region Cooperative School District. Prior to the Legislature's 1999 amendment of RSA 33:8, which decreased the voting percentage necessary for bond issues from 2/3 to 3/5 in Official Ballot communities, the citizens of the Exeter Region Cooperative School District's adopted by referendum vote the Official Ballot Referendum voting procedure set forth in RSA 40:13 establishing a 2/3 majority for bond issues.

HB 497 (seeking to amend RSA 33:8) was introduced through the House Education Committee in 1999. During the Education Committee's public hearing on HB 497 held on March 24, 1999, Dean Michner, on behalf of the New Hampshire School Boards Association, testified that no data existed prior to 1998 for bond passage rates in Official Ballot communities and further that bond issues normally take several years to pass. See Appellant's Brief at p. 56. According to an exhibit submitted in favor of HB 487 by State Representative Harold Lynde at a Senate Education Committee hearing on June 9, 1999, the passage rate for bond issues in Official Ballot communities increased by 16% from 1998 to March of 1999. See Appellant's Brief at p. 78.

In amending RSA 33:8 to decrease the voting percentage needed to pass a bond issue in Official Ballot communities, the Legislature failed to give the voters of the Exeter Region Cooperative School District an opportunity to vote on whether to accept this change.

Part I, Article 39 of the New Hampshire Constitution was enacted to limit the Legislature's plenary control over local government by prohibiting the Legislature from unilaterally enacting any law changing the form of government of a particular city or town and by authorizing city or towns to adopt or amend their form of government, as provided for by general legislative authority, but only by referendum. The intent of Part I, Article 39 is to make any change in the form of government subject to the approval of the affected citizens. Although school districts were not specifically named in Part I, Article 39, they fall within its scope by virtue of their inclusion in RSA 40:13.

In RSA 40:13, the Legislature created and set forth an alternate form of government for citizens residing in town meeting municipalities and school districts which allows them to govern by referendum instead of a town meeting vote. Within the body of RSA 40:13, the Legislature fixed specific voting percentages requiring that any vote to approve a warrant article be made by simple majority except for when a 2/3 vote is required by law, contract, or written agreement. Because the voting percentage was specifically incorporated in RSA 40:13, it goes to the very definition of the Official Ballot form of government. After the citizens of the Exeter Region Cooperative School District voted by referendum to adopt the Official Ballot form of government set forth at RSA 40:13, the Legislature unilaterally altered their form of government by amending RSA 33:8 to decrease the voting percentage needed to approve bond issues in Official Ballot communities, thereby violating Part I, Article 39 of the Constitution which expressly requires a referendum to approve any change in the form of government.

In addition, RSA 33:8 violates the Equal Protection provisions of both the United States and New Hampshire Constitutions by making an impermissible distinction among citizens voting on bond issues based on their level of voting participation and their perceived political orientation. As evident from the explicit legislative history, the Legislature attributed the increased political participation in Official Ballot communities to persons opposed to government and determined that the vote of this segment was responsible for increased opposition to bond issues. By amending RSA 33:8, the Legislature sought to nullify their votes based on their political views. Because RSA 33:8 seeks to discount the vote of a certain class of citizens based on their political views it implicates their right to vote and their right to freedom of speech which are fundamental nature. As such, RSA 33:8 is subject to strict scrutiny and cannot be upheld unless it is narrowly tailored to fulfill a compelling State need. Because the State has no interest in affecting the outcome of local bond issues, the amendment to RSA 33:8, it must be stricken as unconstitutional.

I. RSA 33:8, AS AMENDED, VIOLATES ARTICLE I, PART 39 OF THE NEW HAMPSHIRE CONSTITUTION BY CHANGING THE FORM OF GOVERNMENT IN OFFICIAL BALLOT COMMUNITIES WITHOUT A REFERENDUM.

Any change to the form of government adopted by a community must occur with the consent of its governed. The 1999 amendment of RSA 33:8, which decreased the voting percentage needed for the issuance of debt in Official Ballot communities, substantially altered an integral provision of their form of government and therefore required a referendum vote in order to be constitutional under Part I, Article 39 of our Constitution.

Part I, Article 39 of the New Hampshire Constitution provides that:

No law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters of such city or town upon a referendum to be provided for in said law.

The legislature may by general law authorize cities and towns to adopt or amend-their charters or forms of government in any way which is not in conflict with general law, provided that such charters or amendments shall become effective only upon the approval of the voters of each such city or town on a referendum.

(Emphasis added.) The Court has stated that these provisions:

were designed to place limitations upon the traditional "plenary control by the Legislature over municipalities",..., by insuring that any changes in the charter or form of government of a 'particular city or town' should be made by the Legislature only with the consent of the governed, and that any change instituted by the municipalities themselves, under general legislative authority, should similarly become effective only with like consent. See Report to the Fifteenth Constitutional Convention, Committee to Study the State Constitution, pp.22, 24; Voter's Guide to Proposed Amendments to the Constitution, November 8, 1966 election Question 3; Laws 1963, c. 275, RSA ch. 49-A (supp).

Opinion of the Justices, 109 N. H. 396, 400 (1969) (citation omitted) (Emphasis added). See also. Girard v. Town of Allenstown. 121 N. H.268, 272 (1981) (stating, "The power granted to cities and towns under N. H. Const. pt. I, art. 39, is the power 'to adopt or amend their charters or forms of government."')

Because Part I, Article 39 was adopted long before the enactment of RSA 40:13, it is obvious the drafters of Part I, Article 39 could not have contemplated whether to include school districts within its protection. In its subsequent enactment of RSA 40:13, the Legislature was certainly mindful of Part I, Article 39's application to school districts as witnessed by its decision to require that any changes to or from the Official Ballot form of government by a school district be done by referendum. See RSA 40:14, VI and VII. The strong policy of self-determination which underlies Part I, Article 39 requires that the Court interpret it to apply to school districts as well as cities and towns.

The kernel of this issue - whether the voting percentage requirement goes to the form of government - is best answered by examining the statutory definition of the form which is, ipso facto, the form of government. The 2/3 voting percentage requirement was specifically included in the body of RSA 40:13 at paragraph XIII, making it an integral part of the governmental form. Moreover, it is telling that the Legislature, in seeking to change the voting percentage requirement for bond issues in RSA 40:13, chose to use the back door by amending RSA 33:8 instead of RSA 40:13. As a result, it is now unclear whether the voting majority needed for the issuance of debt in Official Ballot communities is 3/5 or a simple majority.¹

The cases which have analyzed the issue of whether a proposed act or statute effects a change in the form of government are easily distinguished by the fact that none of them involved a change to the statute defining the form of government, as done here. See Opinion of the Justices, 134 N. H. 711 (1991) (proposed act altering city boundaries); Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing. Inc., 123 N. H. 103 (1983) (statute repealing local option control over Sunday dog racing); Sedgewick v. City of Dover, 122 N. H. 193 (1982) (enactment changing hospital's status from quasi-municipal entity to nonprofit community hospital and repeal of enactments regarding city's power to operate hospital); Opinion of the Justices, 112 N. H. 42 (1972) (proposed act authorizing city to acquire, develop and operate industrial parks through its industrial park authority); and Opinion of the Justices, 109 N. H. 396 (1969) (proposed act to authorize municipalities with populations greater than 60,000 to construct public parking facilities and finance construction and operation in part by assessment).

Part I, Article 39 requires that when a community has chosen a form a government that any future change to that form must be done by referendum. This protection is especially warranted in the present case to protect the citizens of Exeter Region Cooperative School District from the bait and switch perpetrated by the Legislature through its back door amendment of RSA 40:13.

¹Under RSA 40:13, XIII, there are only two permissible votes: a 2/3 vote where mandated by law, contract, or written agreement and in all other cases simple majority. Because the vote to authorize the issuance of debt under RSA 33:8 is no longer a 2/3 vote, RSA 40:13 plainly requires that it be done by simple majority.

II RSA 33:8, AS AMENDED, VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND NEW HAMPSHIRE CONSTITUTIONS BY IMPROPERLY AFFECTING THE FREE SPEECH AND VOTING RIGHTS OF CITIZENS IN OFFICIAL BALLOT COMMUNITIES.

As Chief Justice Doe stated more than one hundred years ago, "[t]he settled constitutional right of equal privileges and equal protection under general law rests on incontestable grounds of wisdom and necessity. The equal protection of the laws recently inserted in the federal constitution has been a New Hampshire doctrine 110 years; and it has been maintained here in a breadth of meaning and a scope of practical operation unknown elsewhere." State v. Griffin, 86 N.H. 609, 615, (1894).

The legislative history makes it clear that the intent of the 1999 amendment to RSA 33:8 was to dilute the vote of any person opposing the issuance of debt in Official Ballot communities:

I am not saying that SB 2 was a bad idea, as I mentioned earlier more people are voting and that is good. What we don't really know is whether all these new voters are taken [sic] an active and an informed interest in the issues that they are voting on. This is especially important when it comes to adopting bonds for school districts which currently require a two thirds majority to pass. Many voters as we all know simply vote no on any bond issue without having to take the time to listen to arguments that are in favor....

Senator Burt Cohen, Senate Chamber Floor Debate, Appellant's Brief at p. 51.

The data now show that school districts operating under SB 2 do indeed have a harder-time passing bond issues. I am convinced that even a 3/5 requirement is nearly impossible to achieve under the SB 2 process. Twenty percent, or more, of voters respond no to everything. What remains is a small margin of voters who decide each question.

Representative Iris Estabrook, Testimony on HB 487, Appellant's Brief at p. 59.

I think we now have the opposite situation in Senate Bill 2 towns where a small group of "no voters" - who don't care about anything in town - are increasing the cost of [sic] future taxpayers by causing delayed approval of necessary infrastructure and improvements.... Now, I don't know what is going on, but there are people who probably wouldn't have shown up at the normal deliberative sessions and just go out and vote "no" against anything. That's okay - that's their right. But, it makes the struggle now to get the approval.... In addition, I think we have a group of people .... maybe they don't believe in government - don't want to spend any money - don't care how you do it and just vote "no."

Statement of Representative Harold Lynde, Senate Education Committee Hearing, Appellant's Brief at p. 71.

RSA 33:8 violates the equal protection rights of citizens in Official Ballot communities under both the Federal and State Constitutions because it attempts to punish voters in Official Ballot communities who oppose bond issues by diminishing the effect of their votes based on their perceived anti-government bias. As evident from the legislative history, the Legislature attributed the increased voter participation in Official Ballot communities to persons with anti-government views and identified this segment as an obstacle to approving bond issues. Based on its assumptions, the Legislature enacted RSA 33:8 for the express purpose of diluting the vote of any person in an Official Ballot community who opposes a bond issue. In targeting these voters based on their perceived anti-government bias, the Legislature impermissibly infringed on their right to freedom of speech and their right to vote, both of which are protected as fundamental rights under the State and Federal constitutions. See Belkner v. Preston, 115 N.H. 15, 18 (1975) (recognizing that voting and freedom of speech are fundamental rights). "When governmental action impinges fundamental rights, such matters are entitled to review under the standard of strict judicial scrutiny." Claremont School Dist. v. Governor. 142 N. H. 462, (1997).

As set forth in Seabrook Police Ass'n v. Town of Seabrook. 138 N. H. 177, 182 (1993), equal protection requires the Court to determine whether the state action treats similarly situated groups similarly. In addition, even where "a clear and reasonable distinction exists between [the classes] sufficient to warrant disparate treatment .... When a fundamental interest is involved, a second equal protection analysis must be utilized. Under this analysis, strict scrutiny is applied to require a compelling state interest in order to sustain the regulation."

Citizens who vote on bond issues are similarly situated. RSA 33:8 treats these citizens differently based on whether they live in an Official Ballot community or a town meeting community. This classification is based on the Legislature's assumption that citizens who vote in Official Ballot communities are more likely to be anti-government and therefore more likely to oppose bond issues. The state interest in the bond passage rates of local communities is nonexistent. Even if the State had a colorable interest in affecting local bond issues, there is no compelling state interest to justify the disparate treatment of similarly situated voters where the express purpose of this classification is to diminish someone's vote based on their political views. Whether a classification is based on the color of someone's skin or the color of their vote it is wrong and cannot pass constitutional muster.

By amending RSA 33:8 to change the voting percentage for bond issues in towns and school districts operating under the Official Ballot Referendum form of government, the Legislature changed the form of government in those communities because the voting percentage was specifically incorporated within 40:13 and therefore was part of the governmental form. By failing to require a referendum in the affected communities to approve this change, the amendment violated the express referendum requirement of Part I, Article 39 of the New Hampshire constitution.

RSA 33:8, as amended, violates the Equal Protection provisions of both the United States and New Hampshire Constitutions by making an impermissible distinction among citizens who vote on bond issues based on their level of voting participation and their perceived political orientation. By subjecting voters in Official Ballot communities to separate treatment under the law based on the color of their vote, RSA 33:8 directly impinges upon their fundamental rights of voting and freedom of speech. Because the State has no interest in the outcome of local bond issues - let alone a compelling interest - the 1999 amendment to RSA 33:8 must be stricken under both the State and Federal constitutions.

I certify that I have this date mailed by U.S. Mail a copy of the foregoing to David H. Barnes, Esq., Daniel E. Will, Esq., and Kimberly A. Burke, Esq.

Richard McGraw requests that Paul McEachern, Esq., be allowed to present oral argument.